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State Court Can Order Custodial Parent To Release Exemption

Dependency exemptions seem to take on a role in divorce negotiations that is out of proportion to their economic significance. Given the time that sometimes goes in to negotiating them, it is amazing how often the details get blown. If the custodial parent does not provide the non-custodial parent with Form 8332 or its equivalent, the non-custodial parent is not entitled to the dependency exemption, regardless of what the probate court says. This rule has produced quite a few frustrating Tax Court decisions. A recent Massachusetts appeals decision in the case of Phall Iv and Samath Hang was an attempt to blow these Tax Court decisions back into probate court. The appeal failed, but it illustrates one more instance of needless litigation resulting from inattention to detail.

Samath Hang was ordered to pay $228 per week in child support. The judgment also held that he was to be entitled to claim both unemancipated children as dependents. The tax portion of the judgment was appealed:

The wife has appealed from so much of the divorce judgment as pertains to “taxes.” More specifically, she argues that “[w]ith regard to Federal tax matters … the [S]tates have been preempted,” and “[t]he present system of dependent allowances and credits arising there from no longer allows State courts to make awards of dependents.”

The theory about the lack of power of state courts to allocate dependency exemptions was supported by one of the examples in the regulations.

Pointing to Example 18 of Treas. Reg. §1.152-4, the wife states that even a divorce decree requiring a parent to execute a release so that the noncustodial parent can claim the exemption (something that the judge did not order in the present case) is “ineffective to allocate the right to claim the child as a dependent.” Therefore, in the wife’s view, the judge’s order awarding the husband the right to claim the children as dependents is “unlawful,” and she is entitled to claim both children as dependents.

The point of that example is that if a custodial parent refuses to execute Form 8332 in defiance of a probate court order, the noncustodial parent is still out of luck as far as the IRS and the Tax Court are concerned. That is how the appeals court saw it.

The judge did not err in allowing the husband to claim the children as dependents on his State and Federal income tax returns. Accordingly, we remand this matter to the Probate and Family Court, where the judge shall consider issuing an order that the wife execute a written declaration releasing her claim to the dependency deductions.

Some Practical Points

I suppose I should not be one to be criticizing judges, but it seems to me as a tax practitioner, that an order allocating the dependency exemption should include a specific instruction to the custodial parent to execute Form 8332. Taxpayers have sometimes gotten the Tax Court to accept written statements in lieu of Form 8332, but it seems rather silly to settle for that when a form is available. If the attorney for the non-custodial parent is going to spend time negotiating for the dependency exemption, he or she should see that there is follow-through.

Given all the tsoris that these rules can create, I would advise a noncustodial parent who can get any sort of concession for passing on the exemption to take the concession. I’d even go so far as to say that if you think you and your ex are both going to end up leaving money to the same kids, don’t even bother with it. In Massachusetts, it seems to be common to alternate the exemption from year to year, which seems to be a formula for fomenting needless bickering. My theory for the emphasis on the dependency exemption in divorce negotiations is that it somehow makes the noncustodial parent feel validated as a parent. The truth is that the IRS and the Tax Court have no interest in what kind of a parent you are and would be ill-equipped to make a determination if they did.

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- It seems to me that an order allocating - the dependency exemption should include - a specific instruction to the custodial parent - to execute Form 8332.

The Court should also requite that such document be filed with the Court as part of the permanent record and that any such modifications be adjudicated by the Court along with having any changes to the 8332 stipulations also be filed with the Court.

By tax time, there should be no question as to what the Federal rule is and the state of the case as of 12/31/xxxx.

If they don’t like it, the parties can return to the probate/divorce court and do their quibbling there as to the subsequent years and whether the federal results might entitle one or the other party to compensation from the other for the possible unintended consequence as to the past year(s).

Anyone fighting over child custody, visitation rights or, decision making as a non-custodial parent should listen closely, because there are not a lot of professionals that give advise to lawyers in quite the way that I do.

In high conflict divorce and separation cases, if a parent makes a false allegation of abuse or destabilizes a child’s trust in the other parent or exposes the child to adult information or badmouths the other parent to the child or interferes with visit- ation or blocks a child from telephone access or uses a sibling to interfere with the other parents authority, then this parent is program- ming the child with parental alienation.

If you haven’t heard about parental alienation, you have a lot to learn. I would recommend you google: parental alienation education. For others that know about it and continue to litigate and re-litigate this issue without success, let me explain why things aren’t get- ting better.

Spoiler Alert This is going to sound self-serving but it doesn’t make it any less true.

# 1 reason why things are not getting better:

You depend on a lawyer that’s not getting any input from an expert in parental alienation, or the situation is worse you’re acting pro per. I want you to know there’s a far better solution but it requires making a crucial decision.

A. decision to hire a consultant.

When you hire a consultant, they can tell you, “what is parental alienation” and “ what isn’t parental alienation. “ Unless you don’t really care, and if you don’t care, you’re only hold- ing yourself back. Is that fair to you ?

Judges are not interested in two parents that are totally at opposite ends in their parenting style and polarized. That won’t help any parent-child relational problem. Judges in this scenario will tune you out and look to appoint some type of professional to give them guid- ance i.e., a lawyer for the child, a mediator, a parenting co -ordinator, a child therapist, a custody evaluator, a supervisor of visitation, a family therapist or a judge could decide to empower a child to choose whether or not to see or communicate with a parent they reject.

Many parents cannot afford a lawyer because they believe that it will cost more than they can afford. Sadly that is not always true because they may have money but they’re just not sure how far that money can go. You need a consultant to answer that concern.. In this situation a parent can hire a consultant to select a lawyer to work with them in an unbundled legal services agreement.

When this happens two things start to change.

The first thing to change is that you now have a lawyer and the other thing to change is that you now have the best lawyer you could ever hope to find. Why ? Because your consultant gives the lawyer the input he or she needs to win your case. I’ve been involved in many cases of David versus Goliath, and I’ve seen the lawyer with the $1,000. hourly rate lose. Money doesn’t win in court, the better argument does.

A competent lawyer becomes a very good law- yer because of the input he or she receives from the consultant. Stop looking for parental alienation lawyers and focus on finding a consultant available to help.

By the way, I define a win as an intervention that restores and repairs the bond between the alienated child and the rejected parent. A win is not defined by getting sole custody or get - ting 50/50 time sharing.

Still wondering why you need a consultant ?

Lawyers are not going to admit their short- comings because if they did you would be look- ing for a better lawyer. So they won’t admit that in your particular case they haven’t got a clue where to begin.

A lawyer will not spend the time or bill you for the time it takes to identify the cause of the ruptured relationships within your family. There are only two ways to get to that answer; a full psychological evaluation of all the members of the family, or hire a consultant with an expertise in parental child relational problems. The later is less costly, and provides voluminous additional help.

Did your lawyer screw the pooch in selecting a mental health professional to begin counseling for your child and or for your family ? Did your lawyer come to some backdoor agreement with the opposing counsel to select a mental health professional without you knowing who they are or even why they were agreed to ?

Are you stuck in a situation where a mental health professional is actually making things worse,not better ?

If that sounds like your situation then of course you need to hire a consultant, because if you don’t, things will change again, your parent- child relationship is going to get much worse and that is not even the worst part, the worst part is that your child won’t be getting the treat- ment they need for themselves. Can you turn your back on your child, and give up knowing that ?

Please call a consultant before you do.

Cases often have mental health professionals with the best of intentions practicing outside their areas of expertise, it’s unethical, it’s un- professional, but getting them to step aside so a competent practitioner can take their place is not going to happen hiring a consultant.

Trust me when I say that if this is your reality today, you’re in the quicksand and I’m the one trying to throw you the rope.

Many times a parent will ask me during a consultation if I will talk to their lawyer before they hire me and I say no. Lawyers do not understand what I do, and cannot recommend someone that provides a service they’re not that familiar with and why should they ?

I will tell you this much, after I have read the case files I do talk to their lawyers and as soon as they hear my strategy in the case they’re grateful for my involvement.

That is why your case depends on you. Nobody can tell you if its smart to hire a consultant but you.

I also know when a parent calls for a consult- tion just to get a little free advice. Often times a parent pretends to be a parent of an alien- ated child and they aren’t, they just want a few tips or an advantage over the other parent, some have been accused of alienation and want to know what to expect.

It’s not that different when a lawyer tells an alienating parent they can’t help them to seize custody unless they can get some proof that the other parent is a really bad parent or proof that the child is in fear of the other parent, even if it’ might be totally untrue.

The truth is that parents are falsely accused of parental alienation just the same as parents are falsely accused of child abuse. I have the good fortune of helping parents on both sides of this issue. When you’re accused of alienation you need a consultant to rule it in or to rule it out. Taking a chance without a consultant is a sure bet that you’ll get a poor outcome in court, it’s all up to you.

Nobody can guarantee that you will win your case, but let me put it this way, your best option is to hire that consultant. Share this article. Visit my website at www.ParentalAlienation.ca